Hopper, McGaw & Co., Inc. v. Kelly

• Court: Maryland Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Hopper, McGaw & Co., Inc. v. Kelly, 125 A. 779, 145 Md. 161 (Md. 1924)
• Decision Date: 13 February 1924
• Docket Number: 79.
• Parties: HOPPER, MCGAW & CO., INC., v. KELLY.

125 A. 779

145 Md. 161

HOPPER, MCGAW & CO., INC., v. KELLY.

No. 79.

Court of Appeals of Maryland

February 13, 1924

Appeal from Baltimore City Court, H. Arthur Stump, Judge.

"To be officially reported."

Action by Andrew Kelly against Hopper, McGaw & Company, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

William L. Henderson, of Baltimore (Stewart & Pearre and Aubrey Pearre, Jr., all of Baltimore, on the brief), for appellant.

Paul M Higinbothom, of Baltimore (Wm. Curran and Paul A. Sullivan both of Baltimore, on the brief), for appellee.

THOMAS J.

This appeal is from a judgment recovered by the appellee against the appellant in the Baltimore city court for damages to his automobile alleged to have been caused by the negligence of the agent or servant of the appellant.

The record contains three exceptions, the first and second of which are to rulings of the court below on the evidence, and the third to the granting of plaintiff's first prayer as modified and his second prayer and the overruling of the special exceptions to those prayers, and the rejection of defendant's first, seventh, and eighth prayers.

The accident which gave rise to the suit occurred about 12:30 o'clock in the afternoon at the intersection of Madison and Aisquith streets, in Baltimore city. Madison street runs east and west and Aisquith street north and south, and the evidence shows that there are two street car tracks on Madison street, which, going west, turn to the left at the intersection of said streets and go south down Aisquith street. At the time of the accident the plaintiff's automobile, a Paige car, was being driven by the plaintiff's nephew. He was driving west on Madison street and trailing a street car. The street car slowed down as it approached the corner of Aisquith street to make the curve into Aisquith street, and the plaintiff's car slowed down behind the street car. When the street car got far enough in or around the curve into Aisquith street to enable the plaintiff's car to pass, the plaintiff's car proceeded west on the right-hand side of Madison street, passing between the street car and the north curb of Madison street, until it collided with the defendant's automobile truck at a point west of the center line of Aisquith street. As the street car started to turn south into Aisquith street, the motorman saw the defendant's truck coming north on the right-hand or east side of Aisquith street and motioned to the driver of the truck to take the right of way "over the" street car. The driver of the truck then turned the truck towards the left-hand or west side of Aisquith street and passed in front of the street car as it was making the curve into Aisquith street. The driver of the plaintiff's car testified that at the time his car struck the truck his car was going about 9 or 10 miles an hour; that the street car slowed down as it approached the corner of Aisquith street and he slowed down with it because he could not pass it, and that he had put his car in second gear, that the defendant's truck was on the left-hand side of Aisquith street and he could not see it until he hit it. The motorman of the street car testified that the truck was going about 15 miles an hour when it passed the street car, and that he did not hear the driver of the truck blow his horn; that he did not see the collision, but that he heard "the crash," and that after the conductor of the street car pulled his bell for him to stop and he had stopped the car he looked around and saw the plaintiff's car and the truck about in the center of Aisquith street; that when he motioned to the driver of the truck to give him the right of way over the street car he did not know that the plaintiff's car was behind or following the street car; that he did not hear the Paige car "blowing a horn" and did not know "it was back of him." Another witness to the accident testified that, when the truck turned to its left and passed in front of the street car, the street car, which was about 60 feet long, obstructed the view of the driver of the plaintiff's car; that the plaintiff's car and the truck came together at about the north curb line of Madison street and a little west of the center of Aisquith street. A number of other witnesses testified, but with the exception of the evidence of the damage to the plaintiff's car and of the cost of repairing it the evidence was practically to the same effect as that already referred to.

The plaintiff asked the witness Gately, who saw the accident, what he observed in reference to the speed of the truck at the time it passed the street car. The defendant objected to the question and the court overruled the objection, and, when the witness said that the speed of the truck was "about 15 or 18 miles an hour," the defendant moved to strike out the answer, which the court refused to do. These rulings are the subject of the first exception, and the appellant relies upon the case of State v. United Rys. Co., 139 Md. 306, 115 A. 109, where Judge Stockbridge said in reference to a witness in that case:

"He could, of course, have testified as to whether the car was moving rapidly or slowly, but not to fix the rate of speed as so much per hour, without having shown some special knowledge which would enable him to speak as an expert."

In the case at bar the witness had testified that he rode in a car every day and that when he was in a car he observed the speedometer, and the evidence objected to not only meets the requirement of the case referred to, but its admissibility is established by numerous decisions of this court. United Rys. Co. v. Ward, 113 Md. 649, 77 A. 593; U. Rys. & E. Co. of Baltimore v. Mantik, 127 Md. 205, 96 A. 261; W., B. & A. Ry. Co. v. Fingles, 135 Md. 574, 109 A. 431.

The second exception is to the testimony of the witness Winder as to the cost of repairing the plaintiff's car. The witness had testified that he was employed by Schall-Crouch automobile people, as "service manager," to do the work done in repairing the car and that he superintended the work, and it is not claimed by the appellant that he was not competent to testify to the fair value of the work, but he contends that as the declaration alleged that the plaintiff's "automobile was wrecked and rendered almost a complete loss to him, and no claim was made for the cost of repairing the automobile," the measure of damages was the value of the automobile at the time of the accident. In the case of W., B. & A. Ry. Co. v. Fingles, supra, this court quoted with approval the statement in 17 Corpus Juris, p. 877, that the measure of damages for injury to personal property, which has not been totally destroyed, "is the cost of repairing the property) together with the value of the use of the property during the time it would take to repair it," and there is nothing in the declaration in this case requiring the application of a different rule. We see no objection to plaintiff's first prayer as modified by the court below. It states correctly the measure of damages in such cases, and the only objection urged against it in the special exception and in the appellant's brief is the objection made to the admissibility of the evidence referred to in the second exception. The theory of the appellant is (1) that under the pleadings the plaintiff could only recover the value of the car at the time of the...